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Land Titles and Deeds (Judge Malferrari Past Exams)

July 29, 2010

 

Final Examination

Property & Land Titles

1.

a.)    Who invented the Torrens Land Registration System?

b.)    From what registry was such a system patterned?

2.

a.)    What is meant by the judgment of the Land Registration Court?

b.)    What is meant by the Decree of Registration? What is the basis?

3.

a.)    What is the meaning of Express Trust?

b.)    What is the meaning of Implied Trust?

c.)    What is the meaning of Constructive Trust?

4.

a.)    When is there Tacking of Possession in Land Registration Cases?

b.)    Is a title under the Torrens System subject to Prescription?

c.)    Is a title under the Torrens System subject to Laches?

5.

a.)    What is meant by a Voluntary Land Registration Proceeding? What are the requirements to be followed? Explain.

b.)    What is meant by a Cadastral Registration Proceeding? What are the requirements to be followed? Explain.

6.

a.)    Is Constructive Trust created through the action of a total stranger who is not at all connected with the land claimants? Explain.

b.)    What is the distinction between Res Judicata arising from the final judgment of the Registration Court and that of a Res Judicata arising from the final Decree of Registration?

7.

a.)    When is a Donation Inter Vivos inofficious?

b.)    If a donation inter vivos is inofficious, what is the period of prescription for bringing the action for revocation or reduction?

c.)    Who may bring the action? Do creditors have any right to impugn the validity of the donation?

d.)   Suppose that there are two or more donations and the disposable portion is not sufficient to cover all of them, which of them shall be suppressed or reduced with regard to the excess?

8.

a.)    A died in 1998 heavily indebted. After settlement of his estate in 1999, there was still an aggregate balance of P400,000 in favor of his creditors. As a consequence, his widow, B, and his two legitimate children, C and D did not inherit anything from him. The records, however, show that in 1988, A had donated P800,000 worth of property to X, who in 1986 was already well off. WOULD IT STILL BE POSSIBLE FOR THE HEIRS OF A OR THE CREDITORS TO PROCEED AGAINST X FOR THE REDUCTION OF THE DONATION? EXPLAIN.

b.)    Define donation as a mode of acquiring ownership and give its requisites. What kind of acquisitive mode is a donation?

9.

a.)    Distinguish between a donation inter vivos and a donation mortis causa.

b.)    A donated to X a parcel of land in 1990. The donation was made in a public instrument, while the acceptance made by X was embodied in the same public instrument. The deed of donation was entitled “Donation Inter Vivos.” There is, however, a provision in the deed to the effect that , although the land donated shall be delivered immediately to X upon the perfection of the donation with full right to enjoy all of the fruits thereof, “title thereto shall pass to the donee only upon the donor’s death.” Upon the death of A, his widow and his heir, B, brought an action for the recovery of the property on the ground that the donation is a donation mortis causa and not a donation inter vivos. WILL THE ACTION PROSPER? EXPLAIN.

10.

a.)    D, a bachelor, donated practically all of his properties in 1978 to a close friend, F, in 1980, a few days before he died, he acknowledged his 15-year old natural son, C, CAN C NOW DEMAND FOR A REDUCTIOIN OF THE DONATION? EXPLAIN.

b.)    What are the different special modes by which donations inter vivos may be reduced? Explain.

11.

a.)    When is a donation inter vivos perfected?

b.)    Who are the persons who have the capacity to make and to accept donations?

12.

a.)    A residing in Manila, and having capacity to enter into contract and dispose of his properties, donated a parcel of land to B, a resident of Davao. The deed of donation was sent to B in Davao. One year later, B accepted and notified the donor. In the meantime, the donor became insane, and was still insane at the time he received the notice of acceptance. (Assume that all other formalities of the donation and acceptance had been complied with). The donor died in a few days later, without having recovered his sanity. The heirs refused to deliver the land to B on the ground that the donation had not been perfected for lace of capacity of the donor at the time he received the notice of acceptance. DECIDE IF THE DONATION IS VALID? EXPLAIN.

b.)    A gave his diamond ring worth P10,000 to his friend B as a birthday gift, which the latter accepted with thanks. Two weeks latger, upon learning that S was courting his (A’s) girlfriend, A asked B to return the ring. QUESTION: MAY B LEGALLY REFUSE TO RETURN THE RING? EXPLAIN.

13.

a.)    A who resides in Manila, wrote to his friend B, who is residing in Cotabato City, stating in the letter that A is donating to him (B), B called A by long distance telephone telling A that he is accepting the donation. The same day B wrote and mailed a letter to A accepting the donation. Immediately after mailing the letter, B died of a heart failure. WHO IS ENTITLED TO THE AR NOW, A OR THE HEIRS OF B. EXPLAIN.

b.)    In 1955, A wrote a letter to X donating to the latter a parcel of land. X accepted the donation by means of a public instrument. In 1962, A died survived by only one son, B. In order to cure the defect of the donation made by his father to X, B executed a public instrument ratifying the donation. EXPLAIN THE EFFECTS OF SUCH RATIFICATION. IS SUCH RATIFICATION VALID AS AGAINST THE CREDITORS? EXPLAIN.

14.

a.)    What are the most fundamental limitations which are imposed by law upon the extent of property which may be donated inter vivos?

b.)    When donation is made to several persons jointly, shall there be a right of accretion among them? Is there any exception? Explain.

15.

a.)    In donation inter vivos, may the doner validly establish a reversion of the property donated in his favor or in favor of other persons?

b.) A donated all of his property to a foundation bearing his name, ignoring the claims of his wife and children except for a provision for their maintenance and education during their lifetime. WHAT ARE THE EFFECTS OF THIS DONATION:

  1. DURING THE LIFETIME OF A?
  2. DURING THE DEATH OF A? Explain

 

16.

a.)    Is a Torrens Certificate of Title subject to an action for Quieting of Title?

b.)    When is a Homestead Patent superior to a Torrens Certificate of Title?

17.

a.)    When is Homstead Patent inferior to a Torrens Certificate of Title?

b.)    What is really registered in an Ordinary Land Registration Proceeding?

18.

a.)    What is a Notice of Lis Pendens? When is it registrable?

b.)    What is a Notice of Adverse Claim? When is it registrable?

19.

a.)    Is a Notice of Lis Pendens subject to cancellation during the pendency of the case in court? What is the effect of such cancellation pending trial? Is such cancellation effective immediately?

b.)    When a Notice of Lis Pendens is cancelled by virtue of a judgment of a court in a given case, is such cancellation enforceable immediately? Explain.

20.

a.)    What is the effect of a lien on a registered land when such lien is not registered?

b.)    What is the effect of a lien over a parcel of registered land when such lien is registered only in the day book? Explain.

Final Examination

Property & Land Titles

Oct. 22, 1995

1.

a.) In 1983, ton and Sue married in Cebu where they have continuously resided. In 1986, Sue started Campoo, a sole proprietorship that sold computer +

Criminal Procedure (midterms past exam)

July 29, 2010

  1. Criminal procedure is the method proscribed by law for the apprehension and prosecution of persons accused of any criminal offense. It is concerned with the procedural steps commencing with the initial investigation and concluding with the unconditional release of the offender. It is thus remedial in nature. It differs from criminal law in such a way that the latter defines and treats of the nature of the original offense and provides for their punishment in case of conviction. Criminal Law is substantial in nature.

 

  1. An accused can be released in recognizance instead of bail when he (the accused) has been in custody for a period of equal to or more than the maximum period of the impassable penalty of imprisonment for the offense charge. If the maximum imposable penalty is destierro, the accused shall be released on recognizance after thirty days of imprisonment. These instances shall be without, prejudice for the continuation of the trial.

 

  1. yes, the conviction must prosper assuming that the prosecution was able to establish the guilt beyond reasonable doubt. While the law says that diplomatic representatives and public ministers enjoy diplomatic immunity for the arrest, prosecution and punishment in foreign courts, it is not provided that consuls and vice consuls enjoy the same immunity.

 

  1. No, the conviction was not valid for lack of jurisdiction. While change of venue may be had in order not to frustrate the end of justice, but only with the consent of the SC.

 

  1. No, the conviction was not valid for lack of jurisdiction. The rules on criminal procedure says that as an exception to the exclusive jurisdiction of the municipal trial courts of an offense punishable by imprisonment and not exceeding 6 years. Family courts has exclusive jurisdiction over offenses under 18 years of age but over nine years of age. In the absence of the Family Courts, though, the Regional Trial Court may hear the case.

 

  1. The complaint or information should be filed in the Regional Trial Court. Violation of Election laws, as an exception to the original jurisdiction of Municipal Trial Courts over offenses punishable by imprisonment of not exceeding six years, is under the cognizance of the Regional Trial Court. This exception though carries another exception of election registration violation and violation are under the jurisdiction of the municipal trial court.

 

  1. The information for illegal possession of shabu should be filed with the Regional Trial Court. The law says that violation of the dangerous drugs act is cognizable by the Regional Trial Court, regardless of the involved gram of shabu, as an exception to the original jurisdiction of the Municipal Trial Court. It would be different though if Mr. K was a minor, as the information should be lodged with the Family Courts. But in the absence of it, the Regional Trial Court may hear the case. This is without prejudice to the application  of the provisions of PD 603.

 

  1. Yes, I would sustain the position of Mr. T. while the rules of criminal procedure says that the allegation of the time of commission of the crime is not fatal, it is fatal or important to be alleged in the information if it is material to the proof of conviction, especially so when the failure to allege proper date would impair the accused’s rights to be informed of the nature of the offebse charged against him for preparation of proper defenses.

 

  1. When an accused pleads guilty to the offense, the presiding judge should conduct searching inquiry as to the full comprehension of the accused of his plea. He shall require the prosecution to prove the culpability and degree of guilt of the accused. Moreover, the court shall ask the accused if he wishes to present evidence in his behalf and allow him to do so if he desires. When he pleads to a non-capital offense, the presiding judge may require the accused to present evidence for the proper resolution or determination of the case.

 

  1. No. I would not sustain defense of double jeopardy. The law says that double jeopardy attaches  when the first and second convction are from the same act or offense, among other grounds. In the case at bar, and considering the elements of estafa and violation of BP 22, double jeopardy may not be invoked. Estafa is punished under the Revised Penal Code, while BP No. 22 violation is defined and punished by special law. The gravamen of BP 22 is knowingly issuing a worthless check while that of estafa is misappropriating an amount not owned by the accused.

 

  1. No. The Rules of Criminal Procedure says that private offenses, including seduction shall not be prosecution prosecuted unless commenced by the offended party, even if a minor. If the minor fails to complain, the parents, grand parents, guardian, and State shall file on her behalf. This right is exclusive and shall be exercised in the same above order, provided that no disagreement of parents, the decision of the father shall prevail over that of the mother.

 

  1. The position of Mr. W is untenable, in the absence of proof that the variance in the date, particularly year is merely typographical error. It is the constitutional right of an accused to be informed of the nature of the accusation against him through proper complaint or information, to be able to properly prepare a defense, and of the court for the imposition of the proper penalty. (SCORE: 7)

 

  1. Yes, the contention of the Commission is tenable. A complaint or information should charge only one offense except when the law prescribes a single punishment for different offenses, as in the case of complex crime. Here, as it is not alleged that one offense, out of the thirty two offenses, is a necessary means for committing the other, nor it is alleged that one crime is a grave or less grave felony, only one information should be filed. This is in accordance with the ruling of the court in Santiago versus Garchitorena. (SCORE: 9)

 

  1. The crime committed is a special complex crime of murder with attempted homicide and serious physical injuries. This is to be filed in one information for the reason that there was only one throwing of the hand grenade and motivated by single motive which is vengeance. (SCORE: 10)

 

  1. An information can be amended as a matter before arraignment and plea. Amended may be in form or in substance without leave of court and notice to the offended party. However, if the amendment tends to downgrade the nature of the offense, an amendment of the information tends to downgrade the nature of the offense, an amendment of the information may only be made upon motion of the prosecutor with leave of court and notice to the offended party accused may also be made to plea anew.

 

  1. No, the lawyer for the accused is not correct. The right to preliminary investigation for accused arrest without a warrant may be invoked before an information or complaint is lodged in court, that is five days before filing provided

Criminal Procedure (past exam)

July 29, 2010

 1.      What is criminal procedure?

  1. 2.      When can an accused be released in recognizance instead of bail?
  2. 3.      Case: Involving consul general committing an offense whether he can invoke his immunity and move for a motion to quash?

(Answer sa booklet: No. A motion to quash shall not be granted because of the fact that a consul general is one of the officers not covered by diplomatic immunity)

  1. 4.      Case: Supreme Court having jurisdiction on change of venue

(Answer sa booklet: No, the conviction was not valid for the reason that only the Supreme Court, upon reasonable grounds and in order to avoid miscarriage of justice, can order a transfer of venue. The presiding judge cannot order such transfer, thus, the Court in Cebu City acquired no jurisdiction over the offense)

  1. 5.       Case: involving minor and jurisdiction of case

(Answer sa blue book: No, Miss X, the victim is a minor. The case shall have been filed with the family court of the place where the offense was committed, or in the absence thereof, with the Regional Trial Court. The conviction was not valid because the MTC of Tagoloan hasn’t acquired jurisdiction of the offense charged, which is against a minor, in the first place.)

  1. 6.      Jurisdiction over election offenses

(Answer sa blue book: Violations of election code is filed with eh Regional Trial Courts. The complaint or information shall be filed therewith as this is an express provision of a special law granting original jurisdiction over such offenses to the RTC.)

  1. 7.      When to file Motion for new trial?

(Answer sa blue book: daghan gi-encircle-lan ni judge but wala may minus basta iyang answer kay A motion for new trial shall be filed before the judgment became final or before perfection of an appeal, due to errors of law or irregularities prejudicial to the substantial rights of the accused committed during trial; or when new evidence material to the case has been discovered or became known, which if admitted would change the judgment)

  1. 8.      What are the matters taken up during pre-trial?

(Answer sa blue book but minus 10 siya: During pre-trial, matters relating to the following shall be taken: 1. plea-bargaining 2. stipulation of facts 3. marking for identification of evidence 4. motion of the objection to the admissibility of evidence 5. such other matters which promotes a fair and expeditious trial)

  1. 9.       Case: Minor committed an offense involving drugs where filed?

(Answer sa blue book: The Crime of illegal possession of prohibited or regulated drugs is within the jurisdiction of the Regional Trial Court of the place where it was committed. Although the MTC have original jurisdiction over the offenses penalized by imprisonment of less than 6 years, the crime given in this case, that is, illegal possession of shabu is an exemption to the rule on jurisdiction over the crime or offense charged. It is expressly provided in the anti-drugs law.

In case that Mr. K is a minor, the case shall be filed with the Family Courts of the place where it was committed, in the absence of such a court in that place, it shall be filed in the Regional Trial Court)

10.   Case:

(Answer sa booklet: Yes, considering that the crime charged against him was alleged to be committed on a very specific date, he cannot be convicted of the same offense proved to be committed on another date as this would violate his right to be informed of the nature of the offense charged against him. What the law requires is an approximate date of the commission of the crime and not a specific date when the commission of the is an essential element in the determination of the proper offense to be charged)

11.  What happens if the accused pleads guilty?

(Answer sa booklet) The presxiding judge would then ascertain whether or not the accused who pleaded guilty to a capiutal offense trial and without a doubt comprehend the consequences of his plea; he would then allow the prosecution to present evidence as to the degree of responsibility of the accused and such accused shall be allowed to present evidence as to the mitigating circumstance attendant to his case)

12.  Case: Double jeopardy

(Answer sa blue book niya wrong MINUS 3: Yes, a person previously convicted of an offense cannot be charged with the same offense. Double jeopardy is given to the accused as his safeguard against frivolous and unmeritorious and malicious charges ….)

13.  wala niya gi-answeran ang number 13. wala kamatngon si judge mao wala poy minus…

14. Case: Involving minors and who can file in their behalf

(Answer sa blue book: No. Although a complaint may be instituted by the parents of the minor-victim, they can only do so when such minor is incapacitated to file the complaint herself. If for the reason of disinterest in pursuing the litication, her parents cannot do it for her. Further, if a conflict between the interest of the mother and that of the father, it is that of the latter’s (father_ that is favored in the court)

15.  Case: Error in typing

(Answer sa blue book: No. The error is a manifest error in typing. A typographical error, which does not constitute a miscarriage of justice nor any of his substantial rights prejudiced)

16.  Case: Involving Continuing crime and duplicity of crime charged

(Answer sa blue book: Yes, the 32 counts came from one intent of the Commissioner, which constitutes a continued crime of illegally approving naturalization of unqualified aliens. Since it is one of the exception to the rule against duplicity of crime charged in one information, the Commisioners’s argument that there should be only one information is tenable.

17.  Case: Involving Complex Crime

(Answer sa blue book: Mr. C committed a complex crime of murder with serious physical injuries. This crime is a result of one act which constitutes two or more grave or less grave felonies. Only one information should be filed because although there is a rule against duplicity of offenses charged in one information, this rule admits of exception which states that when the law prescribes a single penalty for various offenses, they shall be charged in one information. The case given is one admitted in the exception to the rule)

18.  When can an information be amended?

(Answer sa blue book: An information can be amended as a matter of right before the accused enters his plea, as to its form or substance, except when the amendment would downgrade the nature of the offense or when it excludes one or more of the accused from the original information.

19.  When can a motion to quash be filed? What are the grounds?

(Answer sa blue book:

  1. The facts alleged in the information does not constitute an offense
  2. The court trying the case has no jurisdiction over the offense charged
  3. The court trying the case has no jurisdiction over the person of the accused
  4. That the person who filed the complaint or information does not have the authority to do so
  5. that the information or complaint contains averments which if proved would constitute a legal excuse or justification
  6. that the information does not substantially conform to the prescribed form
  7. that the accused has already been convicted or acquitted on the same offense or that his case has been dismissed or otherwise terminated without his consent
  8. that the information charged does not constitute an offense

 

A motion to quash shall be filed before the prosecution starts presenting evidence. If the grounds provided in numbers 3,4,6,7, and 9 hav e not been invoked they shall be deemed waived by the accused. Those in numbers 1,2,5 and 8 may be …. Di na Makita)

20.  Case:

Answer sa blue book MINUS 10 man!: Yes, if after the trial, the accused is found guilty of a bailable offense, he can thereby petition for bail to the court where he appealed the decision of his conviction

21.   Case:

(Answer sa blue book minus 10 napud: No. He has already been arraigned, thus, he can no longer invoke his right to a preliminary investigation as he has impliedly waived it. Preliminary investigation is a statutory right, further, it is in the discretion of the court to grant such and if granted, such right has to be served the accused.)

22.  Case:Involving Plea Bargaining

(Answer sa blue book: Motion granted for the reason that plea bargaining may be undertaken during arraignment and that accused may be allowed to plead to a lesesr offense provided that it is with conformity ith the prosecution or consent of the offended party)

23.  Case: Involving question on whether a person can represent himself in court without aide of counsel

(Answer sa bluebook: Motion granted for the reason that a person, who appears to be defending himself in court may do as provided that he definitely and in writing waives his right to be assisted by counsel. Provided further, that he can not later on invoke that he has not afforded the right to counsel, thus depriving him of due process of law)

24. Case: Provisional Dismiissal

(Answer sa blue book: A case can be provisionally dismissed upon motion of the accused and the discretion of the court. The provisional dismissal of offense punishable by imprisonment of not exceeding 6 years shall become permanent after one year without motion to reinstate the case. For case where the crime charged is punishable by imprisonment of more than 6 years, it shall become permanent after two years without motion for reintstatement of the case.

25.  Case: Involving demurrer

(Answer sa blue book Minus 3: Yes, the prosecution controls the preliminary investigation. It is a remedy to invoke demurrer to evidence by the accuysed on appeal after judgment)

26.  Case:

Answer sa blue book: Yes, the Court may sanction the counsel for making documents which are false in order to be granted continuance of the trial, and may sation said counsel to privately retained by the accused  

27.  Case:

28.  Case:

Answer sa blue book minus 10: In order for such application, the accused must file before the court a motion with an affidavit of the material witness showing that he is ____ (dili mabasa) or infirm to appear during the trial or that he residens in a place more than 100 kilometers away from the place of trial without means of appearing before the court for trial. ____ (di napud mabasa) attached is the testimony of such witness, that would constitute as material to the defense of the accused.

29.   When may an accused be discharged to be utilized as state witness

Answer sa blue book: An accused may be discharged and utilized as a state witness when:

1.)    His testimony is absolutely necessary for the prosecution of the offense

2.)    No other direct evidence is available

3.)    His testimony can be corroborated in its material points

4.)    He does not appear to be the most guilty; and

5.)    He has not been at any time, convicted for any offense involving moral turpitude

30.  When may a demurrer to evidence be filed?

(Answer sa blue book: A demurrer to evidence can be filed, after the prosecution rests its case, by the accused with or without issue of court. The same can be filed due to the lack or insufficiency of evidence and the failure of the prosecution to prevent evidence and the failure of the prosecution to present evidence within the time prescribed by law. If such demurrer was filed without leave of court and upon the fact that such demurrer was not granted by the court, the accused waives his right to present evidence in his behalf, thus, he can no longer be allowed to present evidence for his defense.)

31.  Case: Involving Reopening of case

(Answer sa blue book MINUS 10: Yes, it is discretionary on the court, when the interest of justice that the court can reopen the case.)

32.  Case: Involving the accuse entering a plea to a lesser degree

(Answer sa blue book: No. The accused may be allowed to enter plea to a lesser offense upon motion and with consent of the prosecution provided that the lesser offense to which he desires to plead to its included in the offense charged against him in the information or complaint. Unjust vexation is not included in the crime of attempted rape.)

33.  When may a motion to suppress evidence be invoked?

(Answer sa blue book MINUS 10: A motion to suppress evidence maybe invoked when such evidence was taken upon an unreasonable search and seizure; where there was no probable cause personally determined by the judge: and such warrant was issued for purpose of fishing for evidence. The motion shall be filed to the court where the action has been instituted. Where no action has been instituted. It shall be filed in the court issuing such warrant. If such court failst to resolve the motion and there was a subsequent filing of an action in another court, it is with the latter where the motion shall be filed.)

34.  Case: Involving double jeopardy

(Answer sa blue book: There is no double jeopardy in this case as the case was dismissed upon the motion of the accused. However, the accused must be afforded his right to a speedy trial. The constitutional right of an accused must be safeguarded by the courts as the samenote that the courts guards the rights of the victims. Such rights must not be made subject to capricious litigations and unfounded charges against a person.)

35.  Case:

(Answer sa blue book: Yes, the court, in the interest of justice, may arrest as material witness in order to testify in court. However, the court may also allow the wife to post bail to secure her appearance during trial, but if it, would show that bail would still permit such witness to the trial and not testify in court. She may, the witness, be arrested and detained until she testifies.)

36.   Case:

(Answer sa blue book: Yes, in the court where he filed his appeal. If the accused has the tendency to jump bail or flee from the Philippines. The court may not deny Mr. D to file bail.)

37.  Where to file an application for search warrant?

(Answer sa blue book: An application for a search warrant may be made within any court within the province, city or municipality where the place to be searched is found or is situated. A search warrant may be applied in another court not within same province, city or municipality where the search is known or has been known and which would result to miscarriage of justice or the ___ that such warrant is applied for is known by the persons guilty thereby giving them the opportunity to destroy evidence of the crime committed in order to frustrate the ends of justice.)

38.  Case: Involving Prejudicial Question

(Answer to blue book MINUS 3: There is, in this case, a prejudicial question intimately related to the criminal action which must first be resolved in order to determine the prosecution of the offense charged in the criminal case. In the case given. The ownership of said amount must be ascertained and resolved. If it be resolved that the amount belongs to Mr. U as his share in the partnership he had, with Mr. T, then the criminal action of swindling the same cannot prosper. For  one cannot swindle that which belongs to him.)

39.  Case: Estafa

(Answer to blue book MINUS 3: There is, in this case, a prejudicial question intimately related to the criminal action which must first be resolved in order to determine the prosecution of the offense charged in the criminal case. In the case given. The ownership of said amount must be ascertained and resolved. If ti be resolved that the amount belongs to Mr. U as his share in the partneship he had, with Mr. T, then the criminal action of swindling the ssame cannot prosper. For  one cannot swindle that which belongs to him.)

40.   Case:

(Answer sa blue book: No his appeal is not tenable. He cannot invoke of improper venue or want of jurisdiction because the crime he committed falls within the provisions of Article 2 of the Revised Penal Code, vesting in the Philippine Courts the authority to try cases involving the crime of manufacturing fake Philippine currency and shipping the same into the Philippines. The offense in this case is an exception to the rule on territorial jurisdiction. Thus, the RTC of Manila has jurisdiction contrary to what the accused claims in his appeal.)

Criminal Law 3

July 29, 2010

 CRIMINAL LAW 3

1.a) Crime of malversation of public funds or property is committed by any public officer, who by reason of duties of office is in charge with the custody of public funds or property who shall appropriate or shall take to misappropriate or will consent or through abandonment or negligence, permit third person to take such public funds or property or is otherwise guilty of malversation or misappropriation of public funds or property. (SCORE: 5)

 1.b.) The conviction is not tenable. Malversation of public funds does not necessarily include the crime of illegal use for public funds. For conviction of illegal use of public funds, the public officers must have used the public funds to public use other than which it is intended by law or ordinance. In this case, it was proven that there was no law or ordinance which was violated. Hence, she should be acquitted (SCORE: 5)

 II. Yes, the chief of police is criminally liable for negligence in the custody of prisoner. The chief of police was very negligent and his laxity amounts to virtual non-performance of his duty. Hence, he should be prosecuted. (SCORE: 5)

III.a) No, there is no such crime as estafa through negligence. There must be profit or gained obtained by the person through the acts he personally committed. Furthermore, estafa requires deceit, that is, intentional to defraud another by means of false pretense or fraudulent acts this is the opposite of negligence which is an omission of due care. (SCORE: 2.5)

III. b) No, Rosa is not criminally liable for estafa under the circumstances. It is well-settled rule that estafa cannot be committed through negligence because one essential element of estafa is deceit which is opposite of negligence which only constitutes omission of due care. Hence, Rosa is not criminally liable at all. (SCORE: 5)

IV.a) The theft was consummated. In the crime of theft which which is committed by unlawful taking of personal property without the owners consent, without violence against or intimidation upon persons, is consummated when the culprit was able to take exclusive control of possession of the property taken despite the culprit has no opportunity to dispose of the same. In the case at bar, Sunshine was able to have exclusive control of possession of the swimsuit by wearing it under her blouse and pants. Although she has no opportunity to dispose it, the crime is still consummated she performed all acts of execution necessary to commit the crime. Thus, the theft was consummated. (SCORE: 5)

IV. b.) No, the defense shall not be sustained. The phrase “when the reason or occasion of robber the crime of homicide is committed” includes all killings perpetrated prior to, concurrent with or subsequent to the unlawful taking as long as it is made because of robber. The fact that the killing was mere accident is of no moment because the gun was fired by reason or on occasion of robbery. Hence, the accused shall be prosecuted for the special complex crime of robbery with homicide. (SCORE: 5)

IV.c) POI Reyes should be charged of crime of theft. Although he is not the finder, the fact that he is a finder in law. Revised Penal Code provides that any person who found lost property, who shall not return it to the owner or proper authorities shall be guilty of theft. In the case at bar, even though PO1 Reyes had not found the bracelet it was handed to him by Francis in order to return it to the lawful owner, thus there was transfer of physical possession. After the transfer of physical possession Reyes misappropriated which then tantamounts to the crime of theft. (SCORE: 5)

V. a) No, A is not liable but he may be punished by the penalty of destierro. Under the Revised Penal Code Art. 247, it provides that any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person shall kill any of them or both of them, in the act or immediately thereafter, shall suffer the penalty of distierro. The same rules shall be applied in the spouse if the spouse inflicted serious physical injuries. In the case at bar, the pursuit and the killing was made by reason of continuous act. the killing and the serious injuries inflicted wore all by-product of accused rage. Thus, the accused is entitled to the benefits of such provision.

(SCORE: 5)

V.b)  The accused can be held liable for murder. If the killing was perpetrated with treachery even if there was no attempt to kill, the killing is still qualified to murder. Furthermore, the elements of murder are that, one, the person was killed, Second, the accused killed the person, third, it is not parricide nor infanticide, fourth, it is committed under the circumstances, enumerated to qualify the crime. Hence, intent is immaterial as long as there was death. Thus, the crime is murder. (SCORE: 5)

V.c) Consummated crime of arson was the offense committed by Eddie. In the case of People vs. Guttierez, with the same facts herein stated, the court held that the crime of arson is consummated the moment that a portion of the house was burned. In the case at bar, a portion of the house was burned, thus, the crime is consummated arson.

(SCORE: 5)

VI. No, the decision of the trial judge is not correct. Although there was only single act but because of the peculiarity of the weapon used which produces, different bullets by merely pressing the trigger the decisive point is the number of  bullets produced. Thus, four separate crimes were committed. Furthermore, the unlicensed gun cannot be prosecuted as a separate  crime but merely constitutes as a special aggravating circumstances in view of the enactment of RA 8294. (SCORE:5)

VII. a.) Any person who shall kill his father, mother, child, whether legitimate or illegitimate, ascendant or descendant, or spouse shall be guilty of parricide. (SCORE: 2.5)

VII. b. 1) The crime of homicide or murder as the case may be, because the spouse contemplated by law refers to legal spouse not a common law spouse. (CHECKED)

            2) The crime is infanticide because the child is less than 3 days old. (CHECKED)

            3. The crime is parricide because A killed his daughter which is included in the word “child”. (CHECKED)

            4.) The crime is homicide or murder as the case may be because parricide is only applicable to relatives by blood and in the same line (NAAY “X” wrong siguroh! Hehehehe)

            5.) The crime is homicide or murder, as the case may be because a brother is not ascendant or descendant of the accused. (CHECKED) (TOTAL POINTS: 4)

VIII.a) Yes, A is guilty of violating BP Blg. 22. Under the law, it provides that any person who shall issue, makes or draws any check to apply on account or for value, knowing that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the full payment of the or check upon its presentment and was subsequently dishonored for insufficiency of funds, shall constitute the violation of BP 22. Hence, the crime is malum prohibitum. The gravamen of the offense of BP 22 is not non-payment of obligation but mere issuing of worthless check in the circulation, which is injurious in banking system. Hence, the mere fact that A issued a check with no funds therein constitutes the crime of BP 222. (SCORE: 5)

VIII.b) A is guilty of robbery. Although A entered the house without use of force upon things but because of intimidation caused to the maid, the crime is elevated to robbery. There was intimidation used by reason of robbery, consequently, A is guilty of robber under paragraph 5 of Art. 294 of the RPC. (SCORE: 5)

VIII.c) A committed qualified theft. Qualified theft is committed when on occasion of fire a person taking advantage of the chaos unlawfully takes the property. In this case, A taking advantage of confusion be unlawfully took the goods from department store. All of this circumstances constitute the crime of qualified theft.

            (SCORE: 5)

IX. a) The other acts considered rape are:

1.)    When rape is committed through fraudulent machinations or grave abuse of authority.

2.)    When the offended party is demented, even if, none of the circumstances mentioned on Art. 266 be present.

3.)    When rape is committed by any person , under the circumstances provided in Art. 266 paragraph 1, commits sexual assault by inserting his penis into another’s moth or anal orifice or by inserting any object or instrument into the genital or anal orifice of another. (SCORE: 5)

IX.b) Yes, the law provides that the subsequent marriage of the offender and offended party shall extinguish criminal action or penalty imposed. Though, rape is now considered as a crime against persons the barring effect of subsequent marriage by the offended party to the offender constitutes as an exception to the general rule. However, such benefits does not extend to co-principals, accessories and accomplices. (SCORE: 5)

IX.c.) None. There was no crime committed. It is not consented abduction because there was no cajolery or solicitation by the man. It is not simple seduction because there was no deceit committed. It is also not qualified seduction because there was no abuse of authority confidence or relationship. (SCORE: 5)

IXd.) A, committed adultery because A, the wife, being married had sexual intercourse with a man not her husband. The man is not liable because he did not know that the woman was married. Absence of knowledge by the man exonerates him from the crime. (SCORE: 5)

IX.e) Motion should be sustained. There was no crime of defamation imputing to class of persons couched in general terms is not actionable by individuals composing of such group unless the statement is sweeping. In the case at bar, the words used were not sweeping he only mentioned “great majority were dishonest…” it is general and is not directed to a particular person, juridical person or even dead person. Hence, there was no crime. Motion should be granted. (SCORE: 4.75…lageh! Weird bah wala nalang gi-full 5! )

Ambot asa ang “X” wala nako copy…heheehe…God bless! (Past Exam Judge Henry Damasing)

Term of Office of Barangay Officials and Sangguniang Kabataan (SK); a legal research Conclusion

July 29, 2010

III. Statements and e-mails from Local Government Code author and incumbent Sen. Aquilino Pimentel, Jr., Cagayan de Oro city lone district representative Constantino Jaraula, Cagayan de Oro city Association of Barangay Captains (ABC) chairman and city council ex officio member Alexander Dacer along with former ABC chairman now city councilor Ian Mark Nacaya.

 Last Saturday, this student was able to contact Sen. Nene Pimentel, Jr., Cagayan de Oro lone district representative Constantion Jaraula, current ABC-Cagayan de Oro chairman Alexander Dacer and former ABC-CDO chairman now turned City Councilor Ian Mark Nacaya. All four lawmakers affirmed that indeed the terms of barangay and SK officials is still fixed for three consecutive years and not five years.

Pimentel, who is the father of the Local Government Code or RA 7160 and has been constantly following any amendments particularly in the term of office of barangay and SK officials and the postment of their twin elections, cited how his two press releases sent via e-mail to hundreds of media practitioners all over the country contained the phrase  “…barangay officials upon the expiration of their three-year term” The e-mailed press releases were entitled “Its not true that funds are unavailable for barangay elections – Pimentel”[1] (SEE ANNEX F) and “Senate shortens postponement period for barangay-SK Elections to one year” and dated August 12, 2005 and  August 24, 2005, respectively.

Cong. Jaraula who is now serving is third term in Congress also confirmed that there is still no law that has been passed fixing the term of office of barangay and SK officials from three years to five years. City Councilors Dacer and Nacaya also echoed the same but added that there are now moves being initiated by the Liga ng mga Barangay. Dacer who is currently serving one of the largest barangays in the city on his third term said  the Liga ng mga Barangay sa Pilipinas officers have already lobbied their cause in Congress but so far no significant changes in the term of office of barangay and SK officials that have been approved and made into law.

CONCLUSION:

Considering all the above premises — from the historical background of the issue, the Supreme Court decision to contemporaneous statements of lawmakers both from the local and national and even the head of the local barangay captains association– indeed the term of office of barangay and SK officials is fixed for three consecutive years and not five consecutive years.


[1] It’s Not True that Funds are Unavailable for Barangay Elections-Pimentel. www.nenepimentel.org /

Term of Office of Barangay Officials and Sangguniang Kabataan (SK); Legal Research Part II

July 29, 2010

Supreme Court decision on the petition filed by the Liga ng mga Barangay sa Pilipinas to declare unconstitutional Section 43 (c ) of RA 7160 that fixed the term of office of barangay and SK officials to three consecutive years.

 All other bills and laws that came before RA 7160 or the Local Government Code have already been declared superseded and are no longer the holding law by no less than the Supreme Court in particularly RA 7160 Section 43 (c) that fixed the term of office of barangay and SK officials to three consecutive years.[1] (SEE ANNEX E)

In a decision penned by Justice Artemio V. Panganiban, the High Tribunal dismissed the petition to declare as unconstitutional RA 7160 Section 43 ©. The petition was filed by barangay officials through the Liga ng mga Barangay sa Pilipinas just after the Commission on Elections (Comelec) scheduled the May 1997 barangay elections. These barangay officials claimed that they were not covered by RA 7160 but by the former barangay law, RA 6679, which governed the 1989 barangay elections wherein the term of office of barangay officials was fixed for five years.

But the Supreme Court, speaking through Justice Panganiban held that the barangay officials had “no moral ascendancy for their dubious claims to a longer term of office (and) are stopped from asking for any term other than that which they ran for and were elected to, under the law governing their claim to such offices, namely, RA 7160. Thus, in effect, RA 7160 Section 43 © still holds and was reaffirmed by RA 9164 that states the term of office of barangay and SK officials for three consecutive years.


[1] Charter Amendments Should Come after 2004 Polls. http://www.inq7.net

Term of Office of Barangay and Sangguniang Kabataan (SK) officials; a legal research

July 29, 2010

Research question: Resolve whether the term of office of barangay and sangguniang kabataan officials is for three or five consecutive years.

 Researched answer: The term of office of barangay and sangguniang kabataan (SK) officials is for three consecutive years and not five consecutive years. The following are no less than three grounds that support this fact:

 I. Republic Act No. 9164 of 2002 or An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act 7160, as amended otherwise known as the Local Government Code of 1991 and for Other Purposes.

 Last March 19, 2002, President Gloria Macapagal Arroyo signed RA 9164[1] (SEE ANNEX A) that was submitted by Speaker of the House of Representatives Jose de Venecia, Jr. and Senate President Franklin Drilon. It was an act which was a consolidation of Senate Bill No. 2050 and House Bill 4456 finally passed by the Senate and the House of Representatives on March 11, 2002 and March 13, 2002 respectively.

Section 2 of Ra 9164 provides that the “term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act  shall be three (3) years.” It further states that “No barangay elective official shall serve for more than three (3) consecutive terms in the same position; Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official was elected.”

Section 12 of RA 9164 states as its repealing clause that “if any provision of this Act is declared unconstitutional or invalid, such sections or parts not affected thereby shall remain in full force and effect.” The Act took effect last March 2002 after its publication in two newspapers of general circulation.

There have been several recent moves to amend RA 9164 of 2002. This include: (1) House Bill No.2458 or An Act Extending The Term Of Office Of Barangay Officials And Resetting The Date Of Barangay Elections, Amending For The Purpose RA 9164 that was filed last August 18, 2004[2] (SEE ANNEX B); (2) House Bill No. 3742 or An Act Resetting The Date Of The Next Barangay and SK elections to 2008[3] (SEE ANNEX C); and (3) Senate Bill Resetting the Date of the Next Barangay and SK elections to second Monday of May 2007 filed by Senator Richard Gordon just last Aug. 23, 2005[4] (SEE ANNEX D).

So far, all these bills are still pending approval and have yet to pass the requirements of being enacted as a law. HB 2458 was filed by Cong. Eduardo R. Gullas last August 18, 2004 but still remains as a bill as evidence by how several congressmen still proposed 22 bills that were later consolidated under HB 3742 that was just approved last January 12, 2005.

HB 3742 was tackled by Senate Constitutional Amendments, Revision of Codes and Laws headed by Sen. Richard Gordon just last August 23, 2005. Gordon’s committee proposed a Senate Bill resetting the elections of the barangay and SK officials to the second Monday of May 2007. This was approved on the evening of Aug. 23, 2005 and even Sen. Aquilino “Nene” Pimentel, Jr. lauded Gordon’s bill considering that this is a compromise of his proposal that the twin elections be held on second Monday of October 2006 and that of the Lower House’s HB 3742 (SEE ANNEX D). It is expected that HB 3742 and Gordon’s Senate Bill will be discussed and consolidated by the Bicameral Committee with representatives from both Lower House and Senate next month. Considering all these bills and their contemporary backgrounds, the term of office for barangay and sangguniang kabataan officials are still for three consecutive years.


[1] Republic Act No. 9164 of 2002 or An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act 7160, as amended otherwise known as the Local Government Code of 1991 and for Other Purposes. http://www.lawphil.net/statutes/repacts/ra2002/ra_9164.html.

  [2]History of a Bill HB No.2458. http:www.congress.gov.ph

 [3] Joint body agrees to reset barangay and SK elections to 2008. http://www.congress.gov.ph/committees/commnews

 [4] Senate shortens postponement period of Barangay-SK Elections to One year. www.nenepimentel.org

Grounds for Declaring a Labor Strike

July 29, 2010

GROUNDS FOR DECLARING A STRIKE

 (1)   Unfair Labor Practice

 The union has the burden to establish by substantial evidence the grounds alleged in the notice of strike.  It must also show that it substantiated the allegations during the conciliation proceedings.  It is not enough that the union believed  that the ER committed acts of ULP when the circumstances clearly negate even a prima facie showing to warrant such a belief.  (Tiu v. NLRC, 18 August 1997)

 However, as a general rule, a strike may be considered legal when the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegation of ULP is found out to be not true;  the presumption of legality of the strike prevails.  (Long line of cases, latest of which is Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, 28 February 2000)

 (2)   Deadlock

 A deadlock in collective bargaining arises when there is an impasse which presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties.

 (3)   Dismissal of union officers tantamount to union-busting

 Where duly elected union officers are dismissed and such dismissal may constitute union-busting where the existence of the union is threatened, the union may take immediate action without the need for a cooling-off period.  (Art. 263c)

Who May Declare a Strike?

July 29, 2010

WHO MAY DECLARE A STRIKE

             Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlock and ULP.

             In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike, but only on the ground of ULP.  (D.O. # 9, Rule XXII, Sec. 2)

Labor Strikes and Policy on Strikes

July 29, 2010

STRIKE

DEFINITION

 

A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.  (Art. 212o)

 

 

NATURE & PURPOSE

 

            A strike is a coercive activity resorted to by EEs to enforce their demands.  The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed.  Any interruption or stoppage of production spells loss, even disaster.  (Phil. Can Co. v. CIR, 13 July 1950)

 

 

POLICY ON STRIKES

             Because of its more serious impact upon the public interest, the right to strike is more vulnerable to regulation than the right to organize and select representatives for purposes of collective bargaining.

 Strikes must be declared only after the most thoughtful consultation among union members, and conducted peacefully and conformably to regular regulation.

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